John Reid: The "Dark Magic" in the Law

Tuesday, September 13, 2011

The Honourable John Reid, P.C., Former Information Commissioner of Canada.

This article was written by The Honourable John Reid, P.C., former Information Commissioner of Canada, in reflection of the current state of access to information issues in Canada. He specifically examines the recent decision in the Supreme Court case of Information Commissioner of Canada v. The Prime Minister of Canada, which took to court a decade ago.
There are strange things done in the midnight sun
By the men who moil for gold;
The Arctic trails have their secret tales
That would make your blood run cold;
The Northern Lights have seen queer sights,
But the queerest they ever did see
Was that night when the Supreme Court decided
To cremate the legislation on Access To Information!
With apologies to Robert W. Service: adapted from The Cremation of Sam McGee.
When I was a new Member of Parliament, I was taken under the wing of an older, more experienced Member. I recall him telling me that after 20 years in the House of Commons, he was always surprised to see how legislation he had worked on had changed into something else, in spite of the clearness of the language used in the legislation. In my time, I saw similar examples. When I mentioned this to a young student-at-law, he laughed and said that his professors referred to it as the “Dark Magic” in the law. Well, to have any kind of magic, one needs a Sorcerer so that the transformation can take place in the open and be accepted by the audience. We are going to examine a recent decision of the Supreme Court of Canada to see what magic and with what skill they apply their magic to an interesting case. The case is the Information Commissioner of Canada vs The Prime Minister of Canada – the famous Prime Minister’s agenda case.
I was the Information Commissioner who took this case to court. It has taken a decade to get a final decision. In the event, the Supreme Court, the three person panel of the Federal Court of Appeal and the trial Judge all ruled against the Information Commissioner. In doing so, however, there are wonderful exercises of magic throughout the Supreme Court decision. You can read their decision by going to judgments of the Supreme Court of Canada.
We have space to describe only one judicial example of magic. The question that all the Judges claimed to be concerned about was the status of Ministers in the Access To Information Act. The Judges were seeking where in the ATI Act ministers’ offices were listed since, in their opinion, if Ministers were not listed, then they were not included. So they tried to find Ministers in the Access to Information Act, the Privacy Act, the Charter of Rights and Freedoms, the Federal Accountability Act, the Financial Administration Act, the Interpretation Act, and the Library and Archives of Canada Act. They were unable to find Ministers in any of these other Acts so they concluded that Ministers were not covered in the Access Act either.
I am sure some of you remember the immortal lines about the Scarlet Pimpernel. If you substitute the word Minister for “Pimpernel,” I am sure you will understand the Supreme Court’s problem.
They seek him here,
They seek him there,
Those Frenchies seek him everywhere.
Is he in heaven?
Or is he in hell?
That dammed, elusive Minister!
However, Members of Parliament and citizens know where Ministers hang out and where they spend most of their time. They run departments of government. They are the head of these departments, and without Ministers, government departments could not exist. How do we know this? We simply have to refer to the legislation establishing any Department. Here are the powers and duties of the Minister of National Defence – one of the litigants in these cases:
Establishment of the Department of National Defence3. There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.
R.S., c. N-4, s. 3.
Duties
4. The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for
(a) the construction and maintenance of all defence establishments and works for the defence of Canada; and
(b) research relating to the defence of Canada and to the development of and improvements in material.
R.S., 1985, c. N-5, s. 4; R.S., 1985, c. 6 (4th Supp.), s. 10.
So, if you want to find a Minister, you look where Ministers are. It means that any description of a Government Department includes the Minister as he is the head of the Department, and without him, the Department cannot function.
However, even though the Access To Information Act states under Section 4 (3) that “government institution” means
(a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and
(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act.
This description of the government of Canada organization apparently has no resonance with the Supreme Court. In normal use of language, when one says that a government institution means any department or ministry of state, one would assume that it includes all employees, from the merest clerk to the Head of the organization, in this case, the Minister. However, the Supreme Court ruled that that logic and rationality does not apply (after all, this is part of the magic!). Consequently, Ministers and the Prime Minister are not part of a government department for the purposes of the Access to Information Act. Since the Supreme Court has ruled that “government institution” does not include the Minister of “any department or ministry of state of the Government of Canada,” does this mean that all descriptions of government institutions have been altered? The decision separates the Head of a government department from the department with the suggestion that Ministers have no access to departmental documents nor do they create them. Now that is magic!
Having said that a Minister is not part of the department he presides over, the Supreme Court ruled that he and his office can only be covered if it is listed in Schedule 1 of the Access Act. But the problem for the Supreme Court is that some Departments are listed and some are not, notably the Department of Transport, the Department of National Defence and the Privy Council. Does this mean that they are outside the Access Act? There is no clear answer to that question but the Supreme Court proceeds as if they are covered. Another example of magic!
In dealing with illusions and magic, the Sorcerer has to be very adept and clever. There are techniques to assist the Sorcerer, for example the act of redirection. “Look at my left hand while I manipulate this object,” says the Sorcerer. But don’t look at what my right hand is doing! There is the story of the preacher who noted in his sermon text, “argument weak here – raise voice strongly.” There are many more odd decisions in this Supreme Court judgement that make interesting reading as well.
Of course, “dark magic” is usually practiced by someone who comes from “the dark side." Remember that the trial judge, the three judges from the Federal Court of Appeal and the nine Judges of the Supreme Court, add up to 13 Judges agreeing together. Thirteen is a scary, magic number in itself and it took 13 Sorcerers to banish Ministers from the Access Act. We have also seen from this one example (of many more in the judgement) that the quality of the Sorcerer’s art in this case is not impressive; the leger de main is far too obvious and the logic built upon non-common sense straw men, to say nothing of a careful avoidance of the necessary laws creating the Ministers and their departments, is not well done at all. It reminds me of the cartoon Walt Disney made of the Sorcerer’s Apprentice, starring Mickey Mouse, to music by Paul Dukas. In this case, the 13 judges demonstrate that they are still very awkward apprentices indeed. If you would like to see a real Sorcerer, watch this video and be amazed.
As it is, unfortunately, the Supreme Court decision is real and creates a large, black hole in the Access to Information Act, and the Privacy Act as well. Accountability, transparency and openness in our governmental system has taken a back seat to the protection of the elite. The purpose of the Access and Privacy Acts was to transfer some power, to create more balance, between Government and citizens. What little shift in the balance given to citizens in the original Access Act has been returned to government by the Supreme Court.